High Court

Legal Reasoning

cran3863.23-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD30 CRIMINAL APPLICATION NO. 3863 OF 20231. Sanjay S/o Ganpat JadhavAge: 36 years, Occu: Agriculturist2. Ushabai W/o Ganpat JadhavAge:54 years, Occu: HouseholdBoth R/o. Ward No.3, Near Jagdamba Temple,Sindhi Tanda, Tq. Umri, Dist. Nanded....Applicants Versus 1.The State of MaharashtraThrough the Police StationUmari, District Nanded 2.Maroti S/o Ramsingh JadhavAge: 50 years, Occ: AgriculturistR/o. Sindhi Tanda, Tq. Umri, Dist. Narided....Respondents ...Advocate for Applicant : Mr. Krushna S. Solanke h/f Mr. S.J. Naik APP for Respondent No.1: Mr. S.A. Gaikwad Advocate for Respondent No.2 : Mr. G.J. Karne ….. CORAM:SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ.DATED:2nd APRIL, 2025 PER COURT :- 1.The present application has been filed initially for quashingof F.I.R. vide C.R. No. 238 of 2023, dated 25.8.2023, registered withUmri police station, District Nanded and later on for quashment of cran3863.23-2- proceedings of R.C.C. No. 39 of 2024, pending before the learnedJ.M.F.C. Umri, district Nanded for the offences punishable underSections 323, 504 r.w. 34 of I.P.C.2.Heard learned advocates for the respective parties. In orderto cut-short, it may be stated that they have made submissionssupporting their respective contentions.3.Respondent No.2 reported to the police on 25.8.2023,about the incident that had taken place on 24.8.2023 at about 9.00a.m. He had stated that when he was working in his house, at thattime, the applicants went to his house. The informant had taken handloan of Rs.1,00,000/- for more than 08 years prior to the F.I.R. andand he had returned the same about 08 years prior to F.I.R. Sincethe applicants were demanding the amount from him, the applicantsstarted abusing him. Inspite of the statement of the informant that hehas already returned the amount to her husband, the applicant No.2did not pay any heed and applicant No.1 abused and assaulted theinformant by means of piece of brick, which caused injury to the rightside of the chest. The quarrel was settled by one Rohidas GulabRathod and Rohidas Vitthal Rathod. The informant had then gone tothe Government hospital for treatment. cran3863.23-3- 4.During the course of investigation, the statements ofwitnesses have been recorded. Panchanama of spot was carriedout. However, no article was seized from the spot. It is specificallymentioned in the spot panchanama that construction activities weregoing on nearby and because of the same, many bricks werescattered and therefore, it is not possible to state exactly because ofwhich brick the injury has been caused and therefore, there was noseizure from the spot. However, on 05.10.2023, the investigatingofficer has shown execution of a seizure panchanama of pieces ofbricks, weighing around 1 kg from applicant No.1, which is stated tobe at the time of arrest and issuing notice under Section 41-A (1) ofthe Code of Criminal Procedure, 1973. The important point is to benoted that the investigating officer appears to be under confusionbecause the charge sheet states that applicants were arrested on05.10.2023 and Sr. No.17 in the station diary entry No.17 statesabout the date and time of arrest of the accused as 13.08 hours on05.10.2023 and notice under Section 41-A (1) of Cr.P.C. was alsogiven. Even he has tick marked that accused have been released onbail. If notice was issued under Section 41-A (1), then there is noquestion of arrest of the applicants. The documents do not showthat panchanama was prepared at the time of arrest. Section 324 ofI.P.C. is still non bailable, as the amendment to make it bailable wasnot notified at all. Therefore, as regards, so called arrest of the cran3863.23-4- applicants is concerned, we reiterate that the investigating officer wastotally confused and therefore, there could not have been seizure ofany article under Section 165 of Cr.P.C. of the pieces of brick.5.Another fact to be noted is that it is then stated that thepresent applicant No.1 had produced that piece of brick in the policestation. Everything could not have happened on the same day.There is correction or interpolation in respect of timings. The saidseizure is stated to be between 12.50 to 13.05 hours and whateverdocuments regarding Chehrepatri and the form of arrest attachedalongwith the charge sheet (which is not panchnama of arrest), givesa timing as 13.08 hours. Thus, when the piece of brick was allegedlyproduced before the investigating officer, present applicant No.1cannot be said to be an accused.6.The statements of witnesses support the F.I.R. When theirstatements are taken as it is, the injury was caused with the help ofpiece of brick. The medico legal certificate of the petitioner showsthat he had two injuries, one blunt trauma over chest which wasstated to be simple and another was blunt trauma over right shoulderwhich is also simple. It was tried to be submitted on behalf ofrespondent No.2 that respondent No.2 had sustained fracture,however, the medico legal certificate does not support said cran3863.23-5- statement. If there would have been a document showing fracturei.e. grievous hurt, then the offence could not have been only undersection 324 of I.P.C. but it would have taken in the aggravated form.As regards offence under Section 324 of I.P.C. is concerned, theingredients of offence required that the said injury ought to have beencaused by means of any instrument for shooting, stabbing or cutting,or any instrument which, used as a weapon of offence, is likely tocause death, or by means of fire or any heated substance, or bymeans of any poison or any corrosive substance, or by means of anyexplosive substance or any means or by substance which isdeleterious to the human body to inhale, to swallow, or to receive intothe blood. 7.Here all pieces of bricks cannot be said to be a such kind ofinstrument. At the most, it could fulfill ingredients of section 323 ofI.P.C.. But for that purpose, the report under section 154 of Cr.P.C.will not be maintainable, as the provisions of sections 323, 504 wouldthen be non cognizable sections. Under these circumstances, itwould be an abuse of process of law if the applicants are directed toface the trial. The case is made out for exercise of powers undersection 482 of Cr.P.C. Hence, the following order:- cran3863.23-6- O R D E RI.The application stands allowed.II.The proceedings in R.C.C. No. 39 of 2024 pending beforethe learned Judicial Magistrate First Class, Umri, DistrictNanded arising out of F.I.R. vide C.R. No. 238 of 2023,dated 25.08.2023, registered with Umri police station, DistrictNanded for the offences punishable under Sections 324, 504r.w. 34 of I.P.C. stands quashed and set aside as against thepresent applicants. (SANJAY A. DESHMUKH, J.) (SMT. VIBHA KANKANWADI, J.)rlj/